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Kyrgyzstan: Judge rules parliament and government to be called to account for Fergana website ban

On 19 December, the Bishkek inter-district court held the second hearing on blocking access to the Fergana.RU website. The first session was scheduled for 14 December and was later cancelled due to the absence of the defendant, i.e. representatives of the State Communications Agency (SCA). Today, two people represented the SCA: Rustam Zhunusaliev, the deputy head of the administration for control enforcement at the SCA and the expert on legal matters, and Natalia Chernogubova, the deputy head of government supervision at the SCA and the expert on technical matters.

Inter-district Judge Bermet Karagulova presided at the hearing.

The judge noted that according to the Criminal Procedure Code, the defendant-issued power of attorney must be verified with a stamp; however, there was none. The defendants promised to correct the shortcoming throughout the day; the process then began.

Fergana’s lawyer, Nurbek Toktakunov, wanted to know how many lawyers the SCA employed and the reason nobody replaced the SCA lawyer who was ill on 14 December.

Zhunusaliev responded saying there are three lawyers, but also clarified that he is the only one to deal with court processes.

The SCA representatives ignored Toktakunov’s inquiry as to “Why did you not inform the court that you would not come, at least out of respect?”

The judge then outlined the laws and responsibilities of the two sides.

Then Toktatunov asked the court for 10 minutes to familiarise himself with “the defendant’s objection to the appeal on correcting the actions and inactions of the authorities.” The defendant’s “objection” read, in part, that the SCA-issued letter on 21 February 2012 was of a recommendatory character and that Internet service providers were not legally bound to follow the SCA’s instructions.

For a better understanding of the court process, it suffices to read the court records below.

N. Toktakunov: Having familiarised myself with the defendant’s objection, I understand that the SCA does not understand the nature of the lawsuit filed against it. The case is actually very simple. Government agencies have the right to regulate relations only to a certain degree. The capacities of the Zhogorky Kenesh (parliament) are also clearly outlined: drafting bills, adopting laws, voting, corrections, etc. The parliamentary decree to block access to the Fergana’s website is a document, which regulates internal parliamentary activity, and is not to impact activities of other state institutions. The parliament passes laws, which have to be obeyed by everybody. The parliamentary decree in question was on the tragic events that took place in South Kyrgyzstan. Some of authorities allegedly saw signs of extremism in said website’s content; we have laws on counting extremism. The law’s Article 13 provides for regulations of dealing with extremism: the parliament must inform the prosecutor on alleged extremism case(s), the prosecutor then checks the website’s content and then initiates a court process to block access to the online publication. Only after that the communications agency would need to think about ways of blocking access to the website. But even then, the SCA would first have to have a court ruling to do so.

The SCA did not have the right to block Fergana bypassing this procedure. We sent a letter to the Agency on this, wherein we explained the situation and they had to unblock us. But the SCA failed to do anything, thus violating the right of citizens to access to communications. So, there are violations of limiting access to a resource, there is inaction in response to a complaint to unblock the website, there is violation of the right to obtain information and the right to express one’s opinion.

Also, my right to access a resource was violated. (N.Toktakunov filed two motion: one as a lawyer for the Fergana website and another as a citizen whose rights were violated.) I could publish many of my materials only on Fergana, other resources declined, so I could enjoy my rights on this resource. I ask the court to acknowledge the violation of these rights and to re-establish them. In particular, the SCA must send a letter to its licensees instructing to unblock access to the website.

R. Zhunusaliev: The SCA completely disagrees with this appeal and believes that it must be left without satisfaction.

First, Point 30 of the decree instructs “to take measures to block access to the website in the informational space of Kyrgyzstan.” In the decree, the government asks the SCA to take action to block access to the website. The decree must be fulfilled.

Second, the SCA did not adopt any decisions [in this regard]. The SCA says that it did not issue any orders or decrees to block [access to said website]. In our letter issued on 20 February 2012, we simply address the providers asking them to take measures to block [access to] the website in order to implement the decree. We did not exceed the decree’s instructions or [then-Prime Minister Omurbek] Babanov’s order. The letter in question bore a recommendatory character, wherein the SCA only asked to block access to the website per the decree. I want to point out that the letter was a recommendation with no enforcement [foreseen].

Third, given the decree has not been challenged by anybody and it is in full force throughout Kyrgyzstan and all residents must obey it. Toktakunov says that we did not have to implement it. But we are not authorized to legally evaluate government decrees. You can challenge it either through court or the Constitution chamber at the Supreme Court. Based on the statements made above, the SCA is asking this court not to satisfy both [of plaintiff’s] appeals.

N. Toktatukov: Can I then link the first and third points? The decree must be carried out and the SCA does not manage actual blocking, but simply sent a recommendatory letter to the [Internet service] providers. Make up your mind: if the decree is legally binding, then why do you not implement it but only issue a recommendatory letter? So, you sabotaged the execution of the decree yourselves?

R. Zhunusaliev: The SCA did not sabotage the [parliament’s] decision, for we do not have the right to do so. We just carried it out in the form of a letter, which we sent to the [Internet service] providers. An Act to block the website was already adopted by other agencies and we simply had to convey information to providers about this document. We conveyed it to communications partners.

N. Toktakunov: But some of them did block the website, while some didn’t. So, do they have a right to do so?

R. Zhunusaliev: I cannot answer that.

N Toktakunov: If a law is adopted, would you write another recommendation letter? Cannot the SCA take action?

R. Zhunusaliev: Yes, we can. But if an act has been adopted, then why pass a second one. So, communications operators are told that this act exists and must be taken into account. If they do not carry it out, other [state] bodies will deal with them. For example, the Prosecutor-General’s office. We write [a letter to the licensed Internet service providers] about the issued government decree, we inform you about it and ask to block [access].

N. Toktakunov: What are your powers then? What is the nature of your interactions with the [Internet service] providers? To what extent are the providers obliged to implement your decisions?

R. Zhunusaliev: Our responsibilities are listed in the law on the SCA.

N. Toktakunov: You have an unclear, flexible and slippery position. On the one hand, you say that you are able, on the other, you only recommend. If there are providers who do not execute your decisions, then what is the point of your [agency’s] existence? Or, let’s say, we are talking about genuinely dangerous resources, for example, distributing child pornography. Will you also only recommend blocking them?

R. Zhunusaliev: Nobody can take any real measures on blocking [access].

The Judge: So what measures can you take?

R. Zhunusaliev: We need to ask the USA; an appeal must be initiated by a government agency asking to block [that website].

The judge: Is this mechanism outlined anywhere?

R. Zhunusaliev: Nowhere.

N. Toktakunov: Experts must be able to deal with this; for example, those at the SCA.

R. Zhunusaliev: We are not experts. We distribute frequencies.

The Judge: So, what agency is able to block?

R. Zhunusaliev: There is no such agency. It is a question of content – you have to see what is inside. And we do not examine information content.

N. Toktakunov: If experts confirm that a website genuinely poses threats [to our country] and the parliament issues a corresponding decree, will you just release another statement saying how you limited yourself to recommendations? Can you take measures to appeal to the ICAAN and ask them to block a website?

N. Chernogubova: Each web resource has an IP address, provided by the ICAAN. Fergana has two IP addresses: fergana.ru and fergananews.com. If we examine, for example, the “Innocence of Muslims,” the SCA asked the ICAAN to block it, and other sites did the same. If there is a court ruling [on blocking a web resource] and we cannot block [access to] the website in Kyrgyzstan, we address the website’s rightful owner.

N. Toktakunov: You said, “If there is a court ruling.” You did not have this [before blocking access to fergana.ru]. Why have you not addressed the ICAAN?

R. Zhunusaliev: We thought that this measure (the letter) would be enough.

N. Toktatkunov: So, you believe that parliamentary decrees can be executed just like this?

R. Zhunusaliev: No, I do not. We can address the ICAAN. But in this case it was enough to close [access] inside Kyrgyzstan.

N. Chernogubova: If the ICAAN blocks a website, then no one has access to it. And we sent a letter [asking] to block [access] from Kyrgyzstan.

The Judge: The decree literally says “To take action to block throughout the information space of the republic.” So you carried it out simply by sending out a letter. But you had been given a task.

At the end of the hearing, Judge Bermet Karagulova addressed those present saying the court considers “it is necessary to have the Zhogorku Kenesh and the government appear before court; the SCA must provide the court with the instructions it uses to implement its activities.”

The next hearing will take place at 10:00 hours on 16 January 2013.

Representatives of other mass media were not present at the hearing. We will not talk about solidarity among journalists, since it is everybody’s personal choice. But, dear colleagues, do you naively think you will never a face a battle against illegally block access to your online resource?

Ekaterina Ivashchenko

Fergana international information agency

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